More on Razian authority

Brian Leiter prefers that commenters refrain from pseudonymity, so I'll just continue this conversation here. I understand what Gardner and Green are saying, but if it's an accurate interpretation of Raz, it seems to be practically a reductio. To recap, my argument is as follows:

Imagine a legal system, SP, where the criteria of legal validity are: 1, only directives issued by official O are valid; 2, all those directives issued by O which do not conflict with moral considerations A and B are valid. Suppose O issues a directive, "Do X, and do not consider dependent reasons C, D, ... , J." This is clearly a soft positivist system. The question is whether such a system is possible. Gardner and Green claim that on a Razian account, it is not; such a system is incompatible with the conceptual truth that law claims authority.

I claim that, on the contrary, SP's law can easily claim authority. Obviously this claim may or may not be warranted, but, as Raz has been at pains to stress all along, this is not a problem; what Razians need to assert is the conceptual impossibility of SP. And not only is it possible, I believe that the legal system in SP is likely to have a stronger claim than one without such soft-positivist criteria.

Gardner claims that in my example "law-applying officials have no authority regarding the application of A and B. It is irrelevant that they have authority regarding lots of other things (such as C, D ... J)." But this seems to imply that to be an authority--to validly issue directives that can be taken as authoritative--one's directives must be taken as authoritative in all circumstances. Or as Green puts it, "if one assumes, with Raz, that it is necessary to the law that it claim authority, the law cannot include requirements, like A and B, concerning which the lawmaker plays no authoritative function."

To see why I feel this claim must be false, consider hard positivist "sources" criteria. The lawmaker, obviously, plays no authoritative function in deciding whether or not these criteria obtain; they either do or they do not. A bill was either passed in the proper way by the Queen in Parliament or it was not. Subjects must decide for themselves whether or not the directive issues from a valid Source before granting it authoritative status, and the officials might in fact be wrong; the Source-based criteria might fail in particular instances. Some directive might not in fact be encompassed by the authorizing legislation passed by the Queen in Parliament, despite the official's belief that it was (obviously there are complications, as the criteria may in a particular legal system have to do with the official's belief concerning ultra vires concerns rather than the fact of the matter, etc., but this can be put aside; we can imagine hard positivist criteria without such worries). In such a case, would we say, with Green, that "a[n] [executive official] issuing what he believes is a valid [legal] directive cannot consistently *claim* to be acting as an authority when issuing it, insofar as these requirements [ie, the Source-based criteria] are concerned"? No; the official will presumably believe that the criteria are satisfied, and hence be perfectly consistent in her claim (even if wrong). She is not acting as an authority on the question of whether or not the criteria are satisfied; she is acting under the authority conferred on her by the presumed satisfaction of those criteria.

This is exactly parallel to my official O in system SP consistently claiming that her directives are valid, even when she is wrong about A & B. If she is acting in good faith, she must obviously believe herself to be right about A & B; this is enough for her claim to be consistent. Just as the law can be wrong about its claim to authority--whether or not a directive ought in fact exclude and replace the dependent reasons underlying it--so too can officials be wrong about whether they have issued directives that pass the tests of validity within their systems. Are Raz, Green, and Gardner really denying this?

It might seem so. I'm having a bit of a hard time understanding Gardner's claim that "on the hard positivist view the directive must be interpreted so as to make the (legal) force of unexcluded reasons A and B turn on the law-applier's determination of their force." Is the claim is that whether or not the legal criteria of validity--even Source-based criteria--are satisfied turns on the official determination of this fact? Such an assertion seems truly odd, and does not flow at all from the self-image of the law as authoritative. It would seem to imply that officials can never be mistaken about applying the criteria of validity. But of course they can, just as different officials can disagree about whether or not they are satisfied. One official--an executive, say--might think he has valid authority; another--perhaps a judge--might disagree; perhaps a second set of judges will side with the first official. At each stage the officials will be trying to determine whether in fact the criteria of validity--whether Sources-based or otherwise--were satisfied (again, perhaps the judges will be looking at the different question of whether the official was justified in his possibly unauthorized action, but if so they are asking the slightly different question of whether the citizen had a legal duty to obey an invalid law in those circumstances, or a right to recover from the official's act, etc.).

Contra Gardner, soft posivitism does not efface the authority of a legal system's officials; what it does is narrow the scope of this authority. Hard positivist criteria of validity also narrow this scope. A legislature that can only pass bills with a 2/3 supermajority has "less" authority than one operating under simple majority. Same with one that can only legislate on Tuesdays. But this is no more incoherent or problematic than the idea that a doctor might have epistemic authority with respect to kidney diseases but not kidney diseases and brain tumors.

The point of the "partial exclusion" critique is that while the law needs to claim authority, it need only claim authority contingent on validity. Indeed, this contingency is precisely what separates a fully articulated legal system with criteria of legality applied by a cadre of officials from a simple personalist regime where Rex or Regina is an authority on everything. Just as an official can say "Do X" and claim authority because she believes that she is authorized to do so by a bill passed in the proper way (and she believes that moral considerations justify the subjects of her directive treating it as authoritative and hence excluding A, B, ... , J), so too can an official say "Do X" and claim authority because she believes she is authorized to do so by the existence of the bill plus the fact that the directive in fact complies with A & B (and moral considerations justify the subjects excluding C-J). In both cases the official can be wrong both about validity and about whether the authority is warranted, but so what?

Is the claim that inserting any moral considerations into the criteria of validity destroys the possible service value, because any sort of moral evaluation is categorically more difficult to apply than the Sources-based tests the hard positivists envision? This doesn't seem at all persuasive to me, but I won't bother trying to refute it. At any rate, it doesn't seem the natural interpretation of Raz; I had thought the point wasn't that moral considerations were distinctly harder to evaluate, but rather that authority would be undermined by trying to peek beneath and look to all its dependent reasons. Soft positivism doesn't do this. Even if A & B (let's say these are rule-of-law values) are among the dependent reasons that the authority will consider in making its judgment, O provides a service to her subjects by giving her directive in place of C-J. Is is not merely question-begging but mistaken to say that unless all dependent reasons are excluded, no useful service is provided by the exclusion of the rest.

Whether or not O in fact provides this service is an open, moral question, just as are all claims of authority. But I submit that O might actually have an easier time justifying this claim than she would if she were in a hard positivist system lacking the extra criteria of conformity with A & B. This flows from the general claim that it is easier to justify authorities of lesser rather than greater scope. Think about justifications for rule-of-law values: they often point to the ways in which the formal aspects of law (prospectivity, generality, due process) may increase conformity with other, more substantive, moral values. As a potentially vulnerable subject, I may think it reasonable to treat O as authoritative with respect to C-J only if I need not take her as authoritative with respect to rule-of-law considerations A and B. Her conformity with the latter allows me to believe that, in fact, I am better off letting her directive replace my own judgment concerning the rest.

I'm not saying this argument always goes through; I'm generally skeptical concerning legal authority. But soft positivism, by limiting (but not effacing) the law's authority, makes it easier to justify.

I'm really not sure what to add to this. If there's something I'm still missing about Gardner or Green's argument, I'd love to know what; I continued to be baffled by the acceptance of Raz's claim, and I'd be happy to be shown what I'm missing.

Grumpy before my time

Any article titled "An Economist Goes to a Bar And Solves the Mysteries of Dating" is pretty much guaranteed to annoy me. Now, again, the research here is rather interesting: they ran speed-dating experiments for two years and thus have a huge data set on 4-minute interactions between Columbia grad students, at the end of which each decides whether or not they'd be interested in a future date. Very cool. One might question how generalizable are conclusions derived from Columbia grad students (or from speed-dating), but still, neat.

My complaint is simply that the author is doing the world a disservice by implying ("all of this rational-choice stuff") that if you want to study this sort of thing, you should look to economics. This is social psychology pure and simple (and indeed, two of the coauthors were psychologists). Now, none of this would matter much ... except that the social ecology of knowledge-production really is sensitive to considerations like this. It's not good for Truth when economics is seen as the only "real" social science, and bright students go for econ PhDs regardless of the questions they intend to study or the methods best suited for studying them.

UPDATE: to clarify a bit--I don't have a problem with interdisciplinarity. Interdisciplinarity, done well, is great. What I have a problem with is when the general public comes to have a distorted view about what various disciplines are about. If you go to grad school for econ, you'll spend your first years with Mas-Colell, Whinston, and Green; it's not the most natural place for learning how to conduct field studies to gather data on social interactions.

Against Raz's SCA argument for hard positivism

I think Leiter and Greenberg are quite right with their "partial exclusion" critique of Raz's argument that soft positivism is incompatible with the law's necessary claim to authority. I'm not sure their example is quite what they are looking for, though. With a slight modification, it could be immunized against Michael Steven Green's objection:

An official lays down a legal directive: "In instances of this sort, do X; do not consider C ... J." Moreover, the criteria for legal validity in this system include, 1, that directives be issued by this particular official, and 2, that they be consistent with reasons A and B, which are presumably dependent (moral) reasons applicable to a very wide variety of situations.

This is clearly a directive that could be authoritative: we can easily imagine (expertise, democratic respect, whatever) the official's directive being a reason to do X and to exclude C-J from our deliberations about whether to do X. It has served us, despite requiring us to consult A and B to test its legal validity.

This is positivist, because the fact that A and B rather than C and D are among our criteria for legal validity is a consequence of the social practice that we happen to have; it is soft positivist because, as John Gardner puts it in his comment, the A and B reasons do the validating independent of the official's assertion, should he make one, that A and B are in fact satisfied.

Ta-da! Soft positivism. Has this argument not been made in print before? The 1989 S. Calif. Law Review symposium on Raz had a few pieces that came close to this argument (I'm thinking of Stephen Perry's, I believe).

Words have meanings, part XXVI

In the midst of an otherwise-excellent article summarizing what appears to be quite nice research on the degree to which auto repair shops correctly diagnose problems and prescribe unnecessary services, David Leonhardt inserts a rather curious claim: that this research somehow exemplifies "freakonomics," against which there has been a (possibly justified) backlash, but does so in a good way. In doing so he links to an older NYTimes piece that seems just atrocious, one that runs together a number of totally different trends:

(1) economists studying non-market interactions (Beckerites, public choice folks, etc.)
(2) economists distancing themselves from political advocacy, seeing themselves as impartial scientists
(3) economists turning to statistics (or empirical work more broadly) as opposed to formal modeling
(4) economists turning to micro- as opposed to macro- level questions
(5) economists studying "the everyday"

Whatever categories you think Steve Levitt's work falls into, it's just insane to claim that these 5 things are somehow identical. Nor do they necessarily go together. Examples are easy enough to come by--David Friedman's "Hidden Order" is clearly 5, 1, and 4, but certainly not 2 or even 3.

Schneider's research is at the heart of economics: the study of market interactions. It's probably true to say that it's in some sense Not What Most Economists Do, but let's be a bit more precise about what we're talking about. He's studying "the everyday," but the everyday of the market, and while it's micro and empirical it doesn't at all sound like one of those "this instrumental variable regression will explain once and for all a complicated multicausal phenomenon that other social sciences, whose work I shall not read, let alone cite, have studied for decades" findings. Can we please reserve the term "Freakonomics" for the book and the blog? No? Sigh.

On gaps, contradictions, and originalism

Just a brief clarification concerning the last post, as Larry Solum has emphasized in a response to another interlocutor that "One of the points of the New Originalism is that the semantic content of the Constitution sometimes underdetermines its application. That's a feature of the theory, not a bug." While I discussed the problem of gaps and contradictions in my post, I wasn't entirely clear about distinguishing two separate levels of indeterminacy that give originalists trouble in different ways. So let me try to restate this argument, which was merely implicit before.

While Solum acknowledges that semantic content underdetermines its application, he misses the force of the full critique. On the one hand, if we are genuinely restricting ourselves to literal semantic meaning or something very close to it, "underdetermination" is a huge understatement: literal semantic meaning gets us nothing but the really obvious provisions about 2 senators per state, etc. (Keep in mind, though, that deference even to literal semantic meaning requires smuggling in some assumptions, with which I take issue; I think it's quite possible for our criteria of constitutional validity to contradict and override even this thinnest, least controversial sort of meaning. This can be safely put aside, however.) But, as I argued, literal semantic meaning is just not the stuff constitutions are made of: if it were, the idea that they can effectively constrain and structure governments would be absurd. So we have to import some degree of pragmatic content--whether it's Solum's "clause meaning" or something else--to get anything workable at all.

Once we do this, however, we run smack into the interpretive pluralism--the deep disagreement about the criteria of constitutional validity--that Leiter so rightly brings up. (As I noted, it's actually an issue even with LSM, but less obviously so.) Whether we should view this pluralism as generating contradictions (a plurality of inconsistent but valid "constitutional moves") or gaps (when you have a plurality of inconsistent criteria covering some area of consitutional import, then this means you lack any criteria at all) is an interesting philosophical question, but the bottom line is the same. Semantic originalism is not just a theory that leaves certain applications underdetermined; whether or not one may or must use it is itself underdetermined (at least, I would say, from a mainstream positivist standpoint) on any realistic appraisal of American constitutional practice. It is because our highest strata of officialdom are populated by originalists and structuralists and legal process types and Dworkinians and on and on that gaps/contradictions exist in the norms of constitutional validity. And that can't be wished away--or at least, not at once; if every Con Law professor converts to semantic originalism tomorrow, then perhaps in 40 years ...

In short: there are at least two levels of indeterminacy related to constitutional meaning. One is the sort Solum highlights: the rule may not determine the application; semantic meaning won't get us very far (though, as highlighted above, this bites deeper than he acknowledges). The second is at the level of rule-identification itself--and it is this, I insist, that is fatal to the semantic originalist's claim of conceptual necessity.

Originalism wars: the empire strikes back

A nicely combative post by Brian Leiter has set off the latest battle in the Originalism Wars--and best of all, Larry Solum has responded at length with a more complete defense of his semantic originalism than I have seen elsewhere. Further contributions are here, here, here, here, and here. As before, I think it's a mistaken theory, so I'm very happy to see it laid out so clearly; hopefully this will help further contructive debate. Read the whole thing! All done? Good. Now, to give a brief roadmap of my argument:

First, the choice of Gricean sentence meaning or “clause meaning” versus intentionalist “speaker's meaning” is a false dichotomy. Indeed, Solum's shift from “sentence meaning” into “clause meaning” is an example of just how wide the range of possibilities is. Second, Solum's argument for original clause meaning (versus contemporary public meaning) is unpersuasive; as it happens, contemporary public meaning makes a great deal more sense. This is so because of what constitutions norms are, at least on a positivist line: the criteria of legality for the system as a whole. They must therefore supervene on actual practices—whether of officials, on the standard positivist line, or of We the People, on popular constitutionalist views—in an institutionalized way. But originalist modalities of argument, while clearly embedded within American practice, are not the only ones so embedded. Originalists, not living constitutionalists, thus bear the burden of proof in showing why what seem to be foundational practices of constitutional argument are in fact parasitic on originalist ones. Leiter suggests that moral argument is the only thing that could bridge this gap; I'm less certain, especially if one takes a more inferentialist approach to norm validity. But regardless, the typical arguments adduced—about the nature of law or of constitutions—actually cut in the other direction, towards living constitutionalism.

Whew. Let's take this one step at a time, now.

1.

Solum claims that we can usefully divide theories of meaning into textualist and intentionalist camps, with textualists looking to Gricean “sentence meaning” and intentionalists looking to Gricean “speaker's meaning.” While he acknowledges that this is an oversimplification, I insist that it is a dangerously misleading one. To get a sense of just how broad the space of options is, we can look to Paul Horwich's helpful discussion (Reflections on Meaning, p. 23, 27), where he distinguishes the “literal semantic meaning of a word,” which he uses to refer to

'the sense of meaning in which “I” has a single meaning in English, the same one that “Ich” has in German; in which “and” and “but” possess a common meaning, whilst diverging in pragmatic import; in which “everyone” covers all people, although a speaker may use it to ‘mean’, in a different sense, “everyone present”, or “everyone in Boston”, etc.; in which “She's a genius” does not mean either “She's incompetent” or “Let's give her the job”'

from the following other sorts:

(a)
What the speaker means on a given occasion by some word—where this is some temporary modification of its meaning in the language as a whole. The notion of meaning in which “The President” may be used, in virtue of the speaker's local intentions, to mean “The current President of France”.
(b)
What is said, in a given context, by the utterance of some sentence, the proposition expressed by a sentence-token. The notion of meaning in which “I am hungry” means different things depending, not on the speaker's intentions, but on who is speaking, and on when the utterance is performed.
(c)
The conventional pragmatic content of a term, its illocutionary force (going beyond the de dicto propositional constituent that is expressed by it). The respect of meaning in which “but” differs from “and”, and in which “I promise to go” engenders a specific obligation.
(d)
The full information conveyed by the making of a given utterance, i.e. its ‘conversational implicature’, that which the hearer may infer from the speaker's deciding, in the circumstances, to say what he does. The respect of meaning in which “There's no milk left” can mean “Would you buy some?”.
(e)
The non-literal meanings of an expression, including metaphorical and ironic meanings.

Now, we're clearly somewhere in the range of (b) – (e) when we talk about legal norms. Troy Booher's paper “Putting Meaning it its Place” (Law and Philosophy 25, 2006, esp. 398-408) does an excellent job of showing why constitutional meaning can't be a matter of pure semantics: we're interpreting particular utterances, not sentence types. So it's an open and fascinating question just how much pragmatic content should be included in the “meaning” we're looking for. And as I said, Solum seems to acknowledge this: his actual argument for “clause meaning,” in his “Constitutional Texting” article (p. 27), is exactly the right sort of context-sensitive investigation into the constitutional “conversational situation”:

“Clause meaning is the meaning that would be assigned to a clause, on the assumption that the clause was written with the knowledge that it would be ratified and interpreted by readers who would have very limited access to information about the framing and who would be under normative pressure to disregard any information that was not universally accessible.”

Note what's going on here: Solum is giving us a particular conception of meaning that is to be preferred to alternate ones because it makes the most sense of the Framers' attempt to legislate for the future, and our attempt to discover what they did (but not necessarily intended to do) in that attempt. These are normative considerations insofar as they are about how one should attribute meaning if one is to succeed at communication.

2. But while Solum's argument is the right sort, it is still quite wrong. His originalism, like most, fails to take seriously enough the positivist insight that the fundamental criteria of legal validity are practice-based. Our rule of recognition, if we wish to take a Hartian tack, simply cannot be, as Jack Balkin put it, “a continuing legal command addressed to us in the present.” Such a claim is vulnerable to the withering criticisms Hart leveled so long ago at Austin's “command theory” of law. Not the command but the rule that invests it with authority is fundamental, and whether or not the rule points to original rather than present public meaning is precisely the question and hence cannot be assumed. Moreover, it is a question that can only be answered by reference to present practice. Any other sort of inquiry is simply not an inquiry into our constitution, but rather a different constitution that might have crystallized around the same textual artifact.

Now, we needn't endorse what seems to be the standard gloss of Hart—that the Rule of Recognition is a duty-imposing rule on officials—for this to generate problems for originalism. Even if we take constitutional rules to be more purely constitutive (like the rules of chess, which cannot be said to impose obligations; I take this to be Marmor's view, though this may be a misreading) then the lack of convergence at this level—in particular, the lack of convergence on originalist argumentation—means originalists, not living constitutionalists, have the burden of proof. As Bruce Boyden notes in his response to Solum, non-originalist arguments do not sound “odd” at all; precedent, not original understanding, is the touchstone of American constitutionalism.

Solum might reply that the bar is higher than this, that living constitutionalists need to show “a well-established judicial practice of reading the Constitution in ways that are self-consciously inconsistent with the original public meaning.” But this is an entirely unwarranted shifting of goalposts: scholars have been demonstrating since at least Bobbitt's Constitutional Fate that, in fact, we do have interpretive pluralism (I recently came across a reference to a law review article that attempted to study this empirically, with predictable results, but I can't seem to find it right now—if anyone knows the one I'm thinking of, please let me know). As for the demand for “self-conscious inconsistency,” a practice of Xing may obtain even without its practitioners self-consciously repudiating Y, even if Ying may sometimes be inconsistent with Xing. The Canadian constitutional metaphor of the “living tree,” for example, is quite obviously non-originalist, despite the tree's continuity with its roots.

Solum claims that "even a moment’s reflection reveals that there are serious problems with contemporary public meaning" as a semantic theory; I believe this is precisely backwards. Nothing in "contemporary public meaning" requires we treat the phrase "domestic violence" as encapsulated in the Constitution as meaning "spousal, child, and elder abuse,” as Solum and even Balkin seem to suppose. The contemporary meaning of “domestic violence” is simply different in constitutional versus non-constitutional contexts; this is absolutely normal, reflecting the fact that terms of art will often resist broader linguistic shifts. This example should remind us to take with a grain of salt any warnings that abandoning originalism means being left adrift on a sea of meaning, with nothing to hold onto—robust institutional factors that work to conserve meaning are plentiful, precedent being only the most obvious and formal among them. Every difficulty that plagues attempts to discern some unique contemporary meaning within a contested legal practice is equally present in attempts to do the same for a time period in the past, with all of the familiar historical/epistemic hurdles tacked on for good measure. Looking to contemporary meaning is no more viciously circular than looking to contemporary meaning for the definition of words; something can be "objective" by virtue of interpersonal standardization and convergence.

Now, contemporary public meaning does require that, if constitutional practice came to redefine "domestic violence" to have its modern sense within constitutional discourse, then that would be that--but this is a feature, not a bug. "Contemporary public meaning" takes seriously HLA Hart's recognition that, when it comes to constitutional change, "nothing succeeds like success"; the fact of a change cannot be disputed by questioning its legitimacy. (Though one can attempt to reverse it by drawing on still-extant constitutional resources that remain in tension with the shift.) "Original public meaning," by contrast, refuses to accept the possibility of illegitimate change. And this is why I keep insisting that it is the originalist, not the living constitutionalist, who is confusing ought for is.

Semantic originalism, then, is doubly false: false because constitutional meaning is surely more than literal semantic meaning, and false because we needn't restrict ourselves to the original version of whichever sort of meaning that turns out to be. But where does this leave us? Is there answer simply that, where we lack convergent practice, the constitution runs out—and that this covers both specific constitutional norms, and norms of interpretation? And that therefore the only interesting questions that arise once we enter this realm of constitutional dissonance are purely moral ones—about which norms ought to be promoted (with the hopes of eventually embedding them so deeply in constitutional practice that they become hegemonic), etc.?

Quite possibly. This seems to be Leiter's view, and there's a lot to be said for it; Liam Murphy seems to lean this way as well. It's often hard to tell where particular philosophers stand, because few are explicit about whether the practices that constitute the rule of recognition / criteria of validity / what-have-you are in fact interpretive modalities or more concrete norms (e.g., some particular formulation of the First Amendment's freedom of association). And if you agree with this view, moral considerations will probably push against originalism (I won't bother rehearsing the critiques here). The more a theorist thinks of the criteria of validity as being concrete norms, the less constitutional meaning we'll have; but focusing on constitutional inference, as Bobbitt and Dennis Patterson seem to do, just means we have contradiction where before we had gaps. But note that nothing in what I'm saying requires that originalists stop being originalists; it just requires them to admit that originalism is not the whole truth of American constitutionalism. If they wish to keep making originalist arguments, they can; they merely can't pretend that logical necessity compels it, and hence must acknowledge the moral considerations that bear on their choice.

Moreover, those originalists who focus on the nature of law as binding constraint (I'm thinking of Prakash in particular, and perhaps Lawson and Paulsen) must recognize that these considerations actually push against their position. These might or might not be considered moral considerations; one could consider them, as Fuller did and Waldron (at least sometimes) and Dyzenhaus seem to do, part of constitutionalism / legality itself. After all, if what you care about is certainty, predictability, and the like—if what you care about is having a known and stable framework within which people can live their lives—it's truly bizarre to suggest that the criteria of legal validity ought to be what they were taken to be 140 or 220 years ago, regardless of what they were yesterday. The simple truth is that for a constitution to in fact structure and constrain a government, it must not be seen as a command from the past; by refusing to allow up-front recognition of change, you merely force change to happen sub silentio, in unprincipled and unpredictable ways. (Of course, this applies to supermajoritarianism generally!)

To conclude, Solum insists that if living constitutionalists

"want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments."

I have focused here mostly on the first of these tasks, but living constitutionalists have been doing all three for decades. For example: the best arguments for statutory textualism—those of democratic authority and rule-of-law transparency—simply don't apply to supermajoritarian constitutions; the first is subject to dead-hand objections, and the second to incentive-incompatibility. And normative arguments for living constitutionalism are positively legion; that label fits at least half the books published by Americans on constitutional theory. In short: philosophy of language does not compel semantic originalism. Legal positivist considerations push against it, except as one modality among others. And moral and political philosophy can provide all the distinctions needed between statutory and constitutional originalism, in addition to moral considerations for living constitutionalism. The New Originalism is no more attractive than the old.

In which I confess shameful ignorance

Are there many libertarianish theorists who subscribe to freedom-as-non-domination, or variants thereof? Kukathas' (2003) emphasis on freedom of conscience strikes me as not unrelated, insofar as it's a (distinctly individualized) way of requiring institutions be arranged so as to minimize (a certainly conception of) arbitrary power. Others? Am I totally off-base in so characterizing Kukathas?

EDIT: Hayek, obviously, at least sometimes. Silly Trapnel. More?

Does hard positivism matter?

Rather than post something new, I'm going to put up something I drafted a month ago but shelved. That's how I roll.

---

A very brief response to the comment left by "Brutum Fulmen", which expressed puzzlement at my apparent rejection of the philosophical division of labor, and went on to note that even that most inside-baseball debate of general jurisprudence, the hard v. soft positivism, has real consequences ('ILP leads to the view that the law *incorporates*, whereas ELP that the law only *frames*, the moral judgment of what is "cruel and unusual"'):

First, I don't want to knock the division of labor; my point is simply that the theoretical and abstract side has to serve some useful purpose. A university devoted to counting the angels on a pin instantiates the division of labor, too. I don't think I'm alone in thinking that at least some of the questions that motivated the positivism debates of the last 40 years have, in some sense, lost their urgency. But, again, I framed this as a conditional: I also agree with Tamanaha that many legal philosophers are engaged in quite interesting, fruitful work that does engage with what I take to be urgent questions.

Second, I disagree that the hard/soft positivism distinction actually does very much work when it comes to, e.g., the U.S. 8th Amendment. I think we can all agree that Joseph Raz is a fair representative of the hard positivist camp; here's his view on the subject:

'When the Constitution “incorporates” a moral consideration, such as freedom of speech, it sets limits to the power of Congress and other lawmakers to modify this aspect of morality. References to moral considerations in constitutions are typically not cases of the incorporation of morality but blocks to its exclusion or modification by ordinary legislation.' (Incorporation By Law, p. 13.)

Maybe I'm reading this wrong, but I see room here for a nearly Dworkinian theory of adjudication; it surely doesn't make one a Scalia. And Raz is often taken as the hardest of hard positivists!

-- 10/13 update:

I've given a bit more thought to this; I kept it a draft until now due to worries that I was being too glib, perhaps misreading or mischaracterizing Raz's position. But I stand by my claim -- conceptual hard positivism, I believe, is either trivial or implausible. Obviously, Raz disagrees. He thinks, first, that you can reference a body of norms by law without thereby incorporating them into law (a law requiring contracts to be adjudicated through foreign legal system F doesn't thereby incorporate all of F's contract law into the home system), and second, that since morality always applies to everyone anyway, apparent incorporation is merely a matter of law not getting in the way of already existing reasons. But this can't handle the 1stA / 8thA / 14thA cases, let alone the Objective Value Order of Germany's Basic Law, without opening the door to the softest of soft positivism.

If you can have a criterion of legal validity that directs judges towards a subset of moral considerations ('cruel and unusual') when determining whether another norm is law--and hence requires engaging in moral reasoning--it doesn't keep you meaningfully Hard Positivist to note that these considerations already apply anyway; the law is still making a practical difference precisely by insisting that these particular moral reasons, but not others, are to be used as criteria. And analogizing to the referencing-foreign-law case won't work, because at least some of these situations (Germany's Basic Law being the most blatant case) will be right there at the foundations of the system. In other words, you can't say that the underlying criteria are pure, preserving the Sources Thesis, and it's only the derivative laws that then explicitly allow for reference to certain moral considerations in applying them, because this picture excludes legal systems where the references to morality structures the entire legal normative order, as the BVerfGE has consistently held in Germany.

At any rate, as I said: I think general jurisprudence can be and has been helpful in understanding constitutions and legality. But any claim about what's true in all legal systems everywhere is unlikely to resolve standing controversies concerning particular legal systems at particular moments. Indeed, my entire anti-originalist crusade is precisely about denying the applicability of the (general jurisprudence-flavored) syllogism that 'the constitution is written law' + 'written laws are norms whose content just is fixed by public meaning at enactment, period' => 'the content of our constitutional norms are what they were at ratification.'

What is the point of jurisprudence?

“As I have just presented it, this debate is likely to confirm the worst fears of large numbers of contemporary American law professors, the fear that analytic jurisprudence in general, and the debates about legal positivism in particular, are the largely irrelevant preoccupation of a small group of socially unaware but philosophically obsessed pedants, many of whom are English and most of whom are dead.” (Fred Schauer, “Positivism Through Thick and Thin”, in Brian Bix's Analysizing Law).

This brief paper/'think piece' by Steve Smith about the relevance of jurisprudence has provoked an interesting (and certainly spirited!) exchange between Tamanaha, Leiter, Lipshaw, Solum, and Smith himself (links and reply here). Smith's argument seems to be more or less as follows:

The natural law/positivism debate seems semantic at best, and the intra-positivist debates are even more trivial. This might well be because of how debates about the nature of morality are typically bracketed within legal philosophy, taking place purely within (professionally separated) meta-ethics seminars. Perhaps, then, we should just give up on general jurisprudence. On the other hand, practitioners still seem to experience, or at least act as if, there really is some immanent rationality, rather than mere set of posited norms, to law; take their treatment of precedent. This might be where the action is.

Leiter's response is that if general jurisprudence seems sterile, it's because the positivists simply won the debate, and trying to bring God back into things serves no purpose but mystification. Moreover, asking philosophers to be "interesting" to outsiders makes no sense at all; we don't ask it of other specialized scholars, nor should we.

My own thoughts, for what they're worth, are more in line with those of Brian Tamanaha: while conceptual, analytic, general jurisprudence has become an increasingly insular conversation, the study of law 'as such', focusing on its social and institutional dimension, is and ought to be flourishing.

I, personally, focus on constitutionalism precisely because it's an area where the abstract insights of the positivists can and must be supplemented with the substantive insights of the historical institutionalists and political sociologists. Since Kelsen, Hart, and Raz, we've taken for granted a grundnorm, or a rule of recognition, or criteria of legal validity; but any examination of constitutionalism as a political practice immediately makes clear just how messy and interesting these abstract entities really are. If legal philosophers properly-so-called aren't interested in helping sort this stuff out, that's a shame, because I think their conceptual tools can be quite helpful in making sense of how institutional and social practices in fact create, sustain, and change constitutional meaning. We want to go beyond Hart's (quite true) observation that "nothing succeeds like success" when thinking about constitutional change, and I think it's only by marrying the best of the conceptual work with the richest of the substantive and explanatory that we can do this. Moreover, it's only when we have this more satisfactory institutional picture that we can really make headway on what is, in the end, of most importance: the prescriptive and justificatory work.

God and non-consequentialism

At the risk of turning this blog into footnotes-to-Balkinization, rereading Philip Pettit's wonderfully concise brief for consequentialism made me think a bit on Brian Tamanaha's takedown of Michael Perry's odd claim that atheism provides inadequate grounding for human rights. Tamanaha notes that theists are on equally shaky ground, since a loss of faith in the deity undermines the moral code that flows from divine command just as surely as a loss of faith in The Moral Law Within does for the Kantian atheist.

I wonder if perhaps the theist's worry is better interpreted as a claim that non-consequentialism becomes unstable without a god, combined with the assumption that consequentialist derivations of human rights are somehow deficient. And I actually think there's something to the first half of that. As Pettit puts it when explaining the attractions of consequentialism: "There may be features that mark [values that ought to be honored in one's choices, rather than promoted by one's choices] off from other values, but why do those features matter so much? That question typically goes unconsidered by non-consequentialists. Not only do they have a duality then where consequentialists have a unity; they also have an unexplained duality."

Divine-command theists have an easy rejoinder to Pettit: human dignity, etc., is to be honored rather than consequentially (and hence contingently) promoted because God says so. The insertion of God allows non-consequentialists to have a monist theory, just like consequentialists. The Tamanaha-inspired rejoinder might be: but you are still held hostage to the possibility that God does not exist, which is on no more secure footing than whatever meta-ethical grounding a Kantian could come up with. And this is right, but it's a different sort of insecurity. Skeptical meta-ethical arguments of the John Mackie sort--that it's just bizarre to imagine any sort of natural property that would automatically carry the ought-to-be-done-ness [especially of the dualist, non-consequentialist sort!] that characterizes morality--really fail against theism. It's really easy to imagine divine-command morality; you just straightforwardly analogize secular authority and attach it to an omnipotent being.

But what's happened is that the weak point in the argument has shifted from the meta-ethical (what sort of thing is morality; how could it be dualist?) to the straightforwardly metaphysical (how could there be a god of the sort my meta-ethics posits?). And here the theists run into trouble; the existence of such a god is no more reasonable for being easy to imagine, because this ease is fully explained by reasons that have nothing to do with the truth of the claim. Unicorns are easy to imagine, too.

At any rate, though, none of this is an issue unless one concedes that there's something objectionable about consequentialism. And I think most worries on this score are due to a misunderstanding of the theory, which can in fact provide a secure basis--on both the personal and the institutional levels--for human rights. After all, as Austin so wonderfully put it: "It was never contended or conceived by a sound, orthodox utilitarian, that the lover should kiss his mistress with an eye to the common weal." (Province of Jurisprudence Determined, Hart ed., p. 108; quoted in Pettit.)

What would make me wrong?

Commenter William asks (1, 2), in response to my remarks on exclusive originalism, the tough-but-fair question of whether anything could convince me that I'm wrong. More specifically, he wants to know whether:

IF it were the case that most people have always thought that the Constitution was a "law" in the sense of the sort of thing that lawyers ought to be charged with interpreting, and if it ALSO were the case that lawyers have always been mostly originalists, would that constitute a sufficient argument for originalism?

So let me try to clarify what sort of practice-based arguments I believe are relevant to the nature and application of constitutional meaning, and why. As with everything on this blog, this is all very sketchy and tentative.

There are typically two separate questions involved in these debates: A, the nature of constitutional rules, and B, the best method[s] for discovering, understanding, interpreting, and applying them. One move that is made by many otherwise quite dissimilar theorists is to claim that the answer to A strongly constrains the answer to B. Dworkin (1986) thinks the nature of law as an "interpretive concept" that can justify the use of coercion within a political community gives you (or at least Hercules) a method for negotiating the back-and-forth between facts of political history and facts about morality that will lead you the truth about propositions of (constitutional) law. Kesavan and Paulsen (2003) think the nature of the constitution as an authoritative text proclaiming itself supreme law entails a particular sort of originalist textualism with specific roles for different kinds of contemporary evidence to play. Etc.

I think what unites pluralists--resulting, I suspect, in a serious rhetorical disadvantage--is that they (we, I suppose) don't think solving A gets you very far with B. On the contrary, understanding A explains why you shouldn't hope to find any sort of one-size-fits-all answer to B. (And some pluralists don't even seem to see A as a real question at all.) I look at the United States Constitution and I see a particular instantiation of the constitutionalist project of empowering and limiting government through public rules. So a rough answer to A is that constitutional rules are simply those accepted as regulating good inferences about constitutional validity. Constitutional meaning is an emergent and possibly heterogenous property of successful constitutional argument over the document.

Within the American version of this project, the constitutional text plays a peculiar role: it's a supreme written text within a common-law system, and a blueprint for governmental structure that is silent with respect to a great deal of what the state actually does and how (compare). If we want to know how this all works, we have to look and see. But already this very deflationary conceptualization suggests that given reasonably uncontroversial assumptions about American political development, how institutions and social meanings change, and the political use of symbols, one ought not expect too much uniformity.

But what about William's hypothetical? What would it mean if most people thought that the Constitutional was "law" in a leave-it-to-lawyers sort of way, and if lawyers were always originalists? A lot turns on what is meant by that last conditional. Suppose we take it to imply universal agreement to the claim that "the meaning of a constitutional/statutory provision is fixed at its enactment" (call this claim F). Some might be expectations originalists, some might put more weight on precedent than others, some would believe some clauses to reference moral truths, but none would deny that core tenet. In such a world, I'd probably have to sign onto some variant of originalism, yes.

But possibly not. It all depends on how F is deployed in legal reasoning, and what happens when it seems to conflict with other principles of constitutional law. How are lawyers trained to deal with F--do they spend a lot of time studying and practicing originalist theories of statutory and constitutional interpretation, compared to the time they spend on, e.g., common-law reasoning? If it turns out that F is only rarely brought into play (when precedents are thin on the ground, say), and judges routinely allow F-based arguments to be outweighed by other sorts of reasoning without being countered directly, then I think a theorist would have reason to deny the truth of exclusive originalism concerning constitutional meaning.

In other words, it would not be absurd in that hypothetical to assert that F, despite being both universally affirmed and theoretically "deeper" than, e.g., claims about the validity of secret drafting histories, was actually not particularly central to the practice of constitutional law. Now, it would be foolish and possibly malpractice for me to assert not-F while arguing a case in court; I ought merely use arguments that avoid issues of original meaning entirely. But the question here is about the theorist or judge, not advocate. (We care about citizens and politicians, too, but the hypo is explicitly about an artificially legalist constitutional culture.)

Perhaps the originalist impulse flows from an insistence on formal coherence among principles of constitutional meaning and an attraction to "deeper" (e.g., F) over "shallower" ones (e.g., "drafting history may never be consulted"). But I don't think this is always the right way to go with constitutions; sometimes the "deeper" principles should give way. This by no means implies that "anything goes"; constitutional rules exist and one can misinterpret them, both by making bad arguments from within particular modalities and by failing to give proper weight to the proper forms of argument. As for what that balance is, alas, my theoretical commitments force me to admit that I simply don't have enough exposure to the actual practice to have any confidence in my views. It's possible that the correct balancing really is to privilege original meaning over all else, but given the considerations above, I would need to see much more than a tradition of lip service to warrant concession.

[Still trying to sort out the Leiter-on-disagreement stuff.]
[Yes, a lot of this is influenced by Dennis Patterson's Law and Truth.]

Griffin vs. originalism -- coming soon!

More on Leiter and disagreement soon.

Stephen Griffin has put up something of a precis of his upcoming article attacking exclusive originalism--the sort that proclaims original meaning to be the only legitimate locus of meaning, with all other interpretive techniques valid only insofar as they are proxies for it. Unsurprisingly, I'm quite interested to see the finished piece; I'm sympathetic to his goal, and his points seem quite solid.

I'm particularly interested in how he develops his first critique, which I see as the more essential: showing that other modalities of interpretation have a central place in our constitutional tradition, and that originalists therefore face a heavy burden of justification in showing that they ought to be jettisoned.

My worry is that there's a reasonably strong counter to this move that must be acknowledged and refuted. The originalist can claim that [some] nonoriginalist modalities have a real place in ascertaining constitutional meaning, but that meaning itself is nonetheless fixed at ratification/amendment; the use of precedent or structural considerations can only be instrumentally justified as the best way to remain true to this meaning over time. Something like this seems to be Solum's view: his "Constitutional Stare Decisis" presents an essentially lexical ordering of precedent, plain meaning, structure, original meaning, and rule-ishness as considerations ... and yet despite the lowly place original meaning is assigned in the algorithm, his is still a "formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution."

This objection does two things. First, it provides a more credibly positivist rejoinder to the claim that our constitutional practice just isn't exclusively originalist than does the typical "history-of-usurpation" one. What I mean is that no constitutional theory can assert that official practice is wholly detached from the constitutional rules; this would fail to acknowledge that we are seeking the meaning of our constitution, not restoring a lost one. But a sophisticated originalism can explain away the persistence of alternate modalities by showing them to be consistent in theory with exclusive originalism, even if misapplied in practice. Second, it gives reasons--reasons immanent within the practice of constitutionalism and legality--for preferring this view of meaning. A number of authors elaborate on the Marshallian idea that interpreting the constitution is just saying what the law is: original meaning + formalist method is what it means to be bound by law, and attempts to deny this go against the very point of legality.

My four readers will know that I don't think this argument works. But it's an incredibly seductive one, especially insofar as it may well work for statutes: the most sensible understanding of the constitutional allocation of legislative authority might be an originalist one. So where does the constitutional argument fail?

I see two points of attack. The first is to refuse to give ground in interpreting our legal practices: claiming that the varities of constitutional argument are (insofar as they are valid) simply guides to original meaning is false to the reality of constitutionalism, a failure to accept the facts on the ground. While this tack of 'textual fundamentalism' might, for example, be valid in the interpretation of authoritative religious documents, this is only because of the peculiar nature of divine authority at work in such cases--while we revere the Founders, we don't take it that far. In short, this attack just presses the positivist argument harder: you're not talking about our constitution, you're talking about one we used to have. There's no more need to defend this argument against "but it can't change like that; it says so itself!" than there is to defend the legality of the reconstruction amendments' ratification: the fact of practice is fundamental, the justification secondary. (Perhaps this is what Griffin does in his article; the post hints at this.)

The second attack takes on what I think of as the Marshallian Fallacy--the claim that, as some sort of analytic truth, "constitutional meaning:constitutional text::statutory meaning:statutory text". (Repeating the Supremacy Clause loudly is not an answer.) The first step is to see just how question-begging it is: why on earth would we understand the meaning of our legal criteria of validity--what it takes for a statute (for example) to be consistent with the constitution--by simply looking to how we understand the meaning of that statute? No: precisely because of the supremacy of constitutions, statutory interpretation must be guided by considerations internal to the nature of the constitution rather than the other way around. Originalism's (possible) suitability to the outputs of the constitutional structure has basically nothing to do with its propriety for understanding that structure.

Once this is recognized, I think the legality argument falls to pieces. Because to the extent that the nature of statutory meaning can be debated (rather than simply fumbled about for by Thinking Like a Lawyer), the arguments are going to go to the nature of Congressional and executive branch authority, and similar considerations internal to the constitutional structure (or republican theory by reference). And any attempt to apply these arguments to the meaning of constitutional provisions is going to founder on the devastating dead-hand objections that have long been recognized (Marmor's article is a nice, brief treatment). Precisely because of the Framers' relationship to us, arguments from within legality are going to cut precisely the other way: against originalism and towards precedent, established practice, contemporary meaning, and the like.

I think it is only by making arguments of this sort that the seductive appeal of originalism can be defused. For 'it takes a theory to beat a theory' reasons, I suspect that only by showing the propriety and appeal on grounds of legality of nonoriginalist theories of meaning can this battle be won.

*: To forestall objections that I'm misattributing claims to Solum: his argument-from-legality is about neoformalist reasoning simpliciter, and he simply assumes original meaning. But I think some authors have in mind similar arguments at the level of meaning, and see them not as instrumentalist, exactly, but as functional: for constitutions to be what they are, we need OM.

As for Solum's affirmative defense of original meaning as conceptually necessary, here and here ... I'm not convinced. The sentence meaning of a constitutional clause at the time of its enactment is indeed fixed by the time and audience of that clause; but the sentence meaning of that clause right now was not so fixed. It would be a reductio of Grice to think that the first declamation of each unique English sentence fixed its sentence-meaning forever, and I think it equally wrong to insisting that each textual instantiation fixes it for that text. The only warrant for so claiming is sneaking in pragmatics: the contextual fact that the abstracted-intentions that constitute sentence meaning, when dealing with a text, are typically fixed on its time of creation. Indeed, Solum's refinement of "clause meaning" as a subset of "sentence meaning" adds in precisely the contextual background ("1) that the clause is part of the United States Constitution, (2) that it was part of a particular type of legal document, (3) that it was uttered in the context of the whole document") that I insist is both implicit and a question of pragmatics in every extraction of sentence meaning from texts. Solum already concedes, by this refinement, that the sentence meaning of constitutional texts is constituted by particular genre conditions unique to legal/constitutional ones; it's unclear what then justifies the insistence on time-fixity if not something like the Marshallian-functionalist argument. Whew!

Leiter against Dworkin, the continuing series

I love reading Brian Leiter's articles. He does a great job combining clarity with erudition, making clear where his arguments fit in with those that have been advanced by others while avoiding the temptation to romp over a field of defeated straw men. (While his readings of Dworkin aren't exactly "generous," he's hardly guilty of distorting the substance of Dworkin's arguments, even if his conclusions about their merit are rather vituperative^*.) His newest paper, available here, doesn't disappoint: I think it's his clearest and most persuasive articulation yet of why he thinks Dworkin's argument-from-disagreement--as glossed by Scott Shapiro in his wonderful The Hart-Dworkin Debate: A Short Guide For The Perplexed--fails. But I'm still not entirely convinced that theoretical disagreement can be pushed to the side.

In a nutshell, Leiter's argument is that 1, we have no good reason to treat disagreement about criteria of legal validity as the central problem for theories of general jurisprudence, since the massive agreement that characterizes legal systems is of far greater import; 2, to the extent we care about understanding such disagreement, the two natural positivist explanations (there is no truth of the matter about some legal disputes, and thus claims to the contrary are either mistaken or disingenuous) are good enough. Positivism, then, remains superior to Dworkinian interpretivism on the basis of the standard criteria (simplicity, consilience, conservatism) of theory selection. (But go read it. It's very good. Shapiro's, too, if you haven't.) Now, I'm not convinced that interpretivism is the way to go (nor do I think Shapiro's suggested solution works, either). I do think, however, that disagreement about the criteria of legal validity cannot be satisfactorily explained away by an error theory of the sort Leiter supposes.

To some degree this may be just a matter of emphasis. I care about constitutionalism, first and foremost; I look to general jurisprudence only insofar as it relates to this, and think it a mistake to just identify the legal system with the state apparatus. Since I don't really worry about, e.g., tort law or contracts, the fact of massive agreement on these topics isn't so salient. What concerns me is fundamental disagreement over the criteria for constitutionally legitimate activity, about the powers of and limits on the state, and here I just don't think you can consider the topic "marginal." I suppose that one could respond with the claim that, even here, the vast majority (however measured) of issues really are settled (even if perhaps in a decidedly suboptimal way); that's the difference between the USA and, say, Somalia or Iraq. But I just don't think this is good enough, at least not in the United States (which may be uniquely problematic in this respect). At the very least, the class of officials on whose practices constitutional criteria of validity supervene include a number executive and legislative branch actors, besides the usual Article 3 suspects ... and if you don't see deep disagreement over basic questions of constitutional authority there, I don't know what to say.

So the reason we cannot, as Leiter urges, be content with simply saying that constitutional validity norms supervene on convergent constitutional practice and that where such convergence fails, the norms run out, is that this is just not good enough for even a naturalized project of constitutional theory. What I mean by this is straightforward, and ultimately owes much to Leiter's own writings: we want to understand how it is that societies structure political institutions and procedures so that the emergent states are both empowered and constrained in credible, public ways. And to do this, we need a concept of constitutional norms that will tell us exactly how these norms supervene on the practice, what degree of convergence is required for truth-talk of them to be apt (such that disagreement reflects epistemic rather than metaphysical failure), and perhaps even how they reflect or incorporate extra-constitutional norms.

To clarify: I am not saying that a naturalized constitutionalism requires us to deny constitutional indeterminacy; that would be lunacy (or a solid reductio). But it does require us to explain the supervenience relation in a way that fits into this project--or, more pessimistically, to show us the limits of the constitutionalist project by highlighting the precarious nature of any such norms. Theoretical disagreement has to be a central problem for any theory of constitutionalism because the project is about creating structures that will withstand it.

In some ways, this might be seen as a naturalist analog of Raz's authority argument. But rather than claiming that our intuitions about legality show that laws must be individuated such that they could, in theory, guide conduct, the claim is that understanding the (social-scientific!) project of constitutionalism requires a theory of the meaning of consitutional norms, and their relation to the practices on which they supervene, rich enough to help us see when and to what degree they can be institutionalized and sustained^#. Even if many of the actors within the practice will--for predictable, Leiter-noted reasons--consistently overstate constitutional determinacy, we need to understand when and why there is or isn't a truth of the matter.

* -- "In any case, what the preceding shows, rather clearly, is that when Dworkin declares “there is no positive evidence of any kind that when…judges seem to be disagreeing about the law they are really keeping their fingers crossed” (as the Disingenuity Account would have it), what he really ought to have said is, “There may be lots of evidence, but I have made no effort to consider any of it.”" -- Leiter, p.39. Ouch.

# -- This might lead towards Mark Greenberg's "rational relation" doctrine. Or it might not! Stay tuned!

Deflationary constitutional theorizing

At first glance, the relevance of philosophy of language arguments and distinctions--like those utilized by Prof. Green, as discussed here--to constitutional theorizing may seem straightforward. Among other things, we want to know what it is for something to be constitutional or not, and we therefore need an account of constitutional meaning. For example, we might want to know just what the sentence:

"The executive power shall be vested in a President of the United States of America."

means. Claims that the President has complete authority over every official who appears to be in the executive branch look like semantic ones that turn on the meaning of that sentence. And this seems like something a philosopher of language could help us with.

Certainly, some theorists go in this direction: Stavropoulos, for example, and Dworkin in his way. And Chris Green's paper is definitely pressing a semantic argument. But I'm increasingly doubtful that semantics, rather than pragmatics, is where the action is; insofar as arguments about the Vesting Clause are linguistic in any sense, they're focused on that particular use of "executive power" in a particular constitutional / legal context. And this doesn't seem to be what semantic theories are trying to make sense of.

Even a shift to pragmatics may be misleading, though. If we start from the question of which of various possible constitutional orders we have, right now, then it looks like the focus will be on norms of constitutional validity, which may or may not be amenable to (let alone constituted by) authoritative verbal formulation. We care about particular constitutional sentences because of what they do to these norms. And it's not clear why we would expect a general theory of pragmatic content to help us much with this in any concrete way, as the relationship between sentences and norms may be quite system-specific; and indeed is perhaps the defining feature of that system.

[Many theorists have analogized the norms of legal validity to the norms of a game. Would we expect a general theory of pragmatic content to help us much in understanding the rules of Calvinball? Not really: we need to understand Calvinball first, in order to see how utterances within it fit into our theory of content.]

This isn't to say that these theories don't apply to constitutional texts; they surely do. But to the extent we're pushed towards pragmatic theories of legal content, it will be a very deflationary sort of application. On something like Brandom's inferentialism, for example, it seems like we'd characterize the meaning of the Vesting Clause within U.S. constitutional practice as the commitment of everyone involved to take it as a premise in their constitutional reasoning; in particular, their inferences towards entitlements to "x is un/constitutional"-type propositions. But this formulation clearly doesn't help us make the right inferences of this sort; it just makes explicit what's going on already.

Originalism is a sort of foundationalism concerning constitutional inference: it claims there's only one sort of valid argument towards proposition-entitlement, though others may be good if they are taken to reliably generate the originalist sort. What kinds of arguments could justify this claim? Only ones internal to the inferential practice itself, I think: arguments that demonstrate why non-originalist inferences are somehow defective (perhaps by leading inevitably to contradiction). I think this is the most respectable gloss to put on many of the arguments put forward for originalism; and I think that the pervasiveness of "constitutional faith" is why moral arguments are actually respectable in this context, though only when formulated in a certain indirect fashion. This is also how many dynamist arguments work: one commenter pointed to Stevens' concurrence in Georgia v. Randolph, in which we can see his attempt (ably rebutted by Scalia) to demonstrate why originalist inferences would be unsound (namely, because they would lead to contradictions with commitments to gender equality).

Now, I take the project of constitutionalism to aim at the institutionalization of public rules of constitutional inference. I think this, in fact, actually points towards internal arguments against originalism, arguments based on incentive-incompatibility (at least within a supermajoritarian amendment framework). But, alas, few writers seem to be advancing claims like this.

Philosophy of language and originalism

Chris Green's paper on applying the sense-reference distinction to constitutional law, available here, is interesting, although I find it ultimately frustrating. His claim is basically that originalism, while implausible if taken to mean original references (truth-values, more or less) of constitutional propositions, is bother possible and correct if taken to mean original senses (functions from possible worlds to truth values, more or less). This has some affinities to Jack Balkin's "original principles" approach, and places it within the broader family of "original meaning, not applications" originalisms.

One upshot of this approach is to make clear just how immense is the authority it accords to the constitutional framers. This is because sense determines extension; the job of modern interpreters, once the original sense has been extracted, is merely to slot in the facts of the actual world, as best they know them, and thus discover the truth of concrete propositions ("segregation is unconstitutional"). Not only did the framers get to pick a rule that would decide constitutionality in the world they knew (even if they might have been mistaken about how to follow that rule); they got to pick a rule that would decide constitutionality in all possible worlds, now and forever.

And yet--I repeat myself, perhaps, but I keep seeing the same thing!--just why we are in fact bound to the original sense/intension rather than the current one is almost entirely unmotivated. In Green's defense, he is upfront about this, admitting (on page 16 of 102) that he "cannot here give a full defense of the theory" before pointing, in a footnote, to the possibility of an argument relying on the text's self-understanding as an "historically-embodied textual assertion of authority." In the article itself, he claims that intension-originalism follows from the point of constitutionalism as a set of rules that can stay fixed while applying to changing and unforseen circumstances (16-17). But both arguments seem question-begging to me.

1. The text's self-understanding of its own authority, on its own, is irrelevant. "X. Trapnel's Best Constitution Ever" could claim unlimited and perpetual authority for itself, but it would still have none; the nature of a text's authority must flow from the character of the practices of understanding, interpreting, and applying it. Perhaps Green disputes this, but I had thought this a core tenet of almost all general jurisprudence; even Dworkinian interpretivism starts from the history and point of the practice, rather than the artifactual locus of the practice, in order to get things going.

2. The idea that original-intension/sense is a "natural position to take" because of our concern with the rules as apart from their contingent (and possibly mistaken) applications may be true psychologically--and if so, that does count as evidence, on a practice-based view, for the non-exclusive validity of originalist arguments. But it is hardly the only position, and the normative/practice-based concerns that motivate it actual push the other way. (I'm unsure whether Green is arguing that his theory follows because it best accommodates the objective values of stability and responsiveness, or whether he is making a more practice-based claim about the purposes embedded within American constitutionalism right now, irrespective of their merits. But either way!)

Suppose we accept that constitutional sense/intension determines constitutionality. What does that get us? Not originalism: Green points to Frege's claim that sense remains constant over time, but Chalmers' modern reconstruction, which Green also relies on, abandons this claim as implausible; and even at the same moment, two individuals can assign different intensions to natural kind terms or names. Why privilege the original (standardized across users, let's grant) intension over the current one? Both give us a rule that is metaphysically prior to its applications and can reach unforeseen ones. Moreover, the contemporary intension will do a better job of dealing with vagueness: precisely because it is our rule, not our forebears', we will find it easier to apply.

Worries that relying on contemporary intension/meaning/what-have-you means abandoning constitutionalism entirely are simply misplaced. The common law--which is nothing if not unoriginalist--wasn't just a bunch of lawless judges handing down decrees, pace Bentham (though he may well have been right at the time). Now, there's clearly a difference between interpreting a line of purely atextual decisions and interpreting a written constitution, but exactly what sort of difference is a deeply contingent question. The moves you can make in Australia are different than in Canada, and it's not just a matter of conceptual confusion. I think it rather telling that Scalia's originalist manifesto was titled "Common-Law Courts in a Civil Law System"; that alone should set off alarm bells.

There's definitely an originalist strand in American constitutional practice, but to elevate that to hegemonic status and deny the validity of all other forms of argument seems to require either wishful thinking or explicitly normative arguments--and I think the latter are only persuasive to those who approve of original meaning on substantive grounds, and even then ought to be overridden by procedural concerns.

(If I've misunderstood or mischaracterized the positions here, please correct me!)

Legal inferentialism: totally sweet

So I've been reading Brandom's Articulating Reasons, the gentle introduction to his inferentialist magnum opus, thinking that perhaps therein lies a rigorous foundation to a practice-based conception of legal argument that goes beyond mere handwaving. And, hey, look: "On Legal Inferentialism. Toward a Pragmatics of Semantic Content in Legal Interpretation?" I love it when it turns out someone has written an article clarifying exactly the problem I'm trying to muddle through.

One frustrating aspect of the questions I'm interested in is that I really need to become conversant not merely in general jurisprudence and constitutionalism-as-political-theory, but philosophy of language/mind/action, and probably sociological analysis of institutions, too. Especially insofar as the inferentialist stuff seems rather heterodox. (Brandom's "Making it Explicit" has about 500 Google Scholar citations, but it seems like about 450 are dedicated to refuting it.) Eeep!

More later.

Public rule-following and constitutional "fidelity"

I find it interesting to read Matthew Adler's "Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism" paper (here) against the background of Philip Pettit's "The Reality of Rule-following" (here). Adler's paper summarizes the struggles that legal positivists have had in moving beyond H.L.A. Hart's not-so-helpful formulation of the Rule of Recognition as a 'social rule'. The difficulty, generally speaking, is that the level of cooperation and (colloquially speaking!) coordination that extant philosophical models of group activity presuppose seems to be lacking in the real world with our legal criteria of validity. In response, some theorists have explored weaker and weaker models of social practice, but Adler suggests that even these do not go far enough. The problem, for him, is that all these models insist on "group-sensitive" acceptance of the rule or criteria, which rules out the sort of "group-insensitive" acceptance displayed by a "constitutional fidelity" that proclaims its version of the rules to be correct no matter what everyone else thinks. Surveying the landscape of American constitutional theorizing, Adler finds this "fidelity" ubiquitous and hence considers it a strike against most positivists that they treat it as somehow deficient.

I'll put aside the specifics of the various proposals at issue here--Scott Shapiro's 'massively shared agency', in particular, I need to look at more closely--and just touch on why I think some very general philosophical worries about public rule-following might perhaps push back against Adler. In other words, rule-following itself might preclude group-insensitive (GI) acceptance, making "constitutional fundamentalism" perhaps a better label for such an attitude than "fidelity."

Pettit's paper is part of the vast literature (with which I have only a dilettante's acquaintance; caveat lector) responding to Kripkensteinian worries about how we can ever know ourselves to follow one rule rather than another (because all our prior experience underdetermines future use, &c). He wants to account for our being able to directly but fallibly "read off" of particular rules applications of potentially indefinite scope. In order to do this, Pettit takes an interestingly naturalist tack: perhaps a rule can be uniquely picked out by prior uses through an exemplification relation, such that even if (a, b, c) are consistent with rules (r1, r2, ... , rn), they will in fact exemplify only r1 if presented in ideal conditions to beings like us with our particular, evolutionarily adaptive, capacities. Without at least hypothetical others to compare reactions with, however, we lose the fallibility requirement; in order to know that I'm following a rule rather than grasping at a different one each time a new situation presents itself, I must be able to engage in counterfactual introspection to see how I might have gone wrong in my responses.

What about public rules? Here there's an extra difficulty: I need to know not merely that I'm continuing to apply one rule to various situations, but also that it's the same one that you're applying. As Pettit puts it, "it is only if the person identifies the rule on the basis of an interpersonally as well as intertemporally standardized inclination that I can know which rule he is following." But this isn't--can't be--a one-time encounter; it's only by continually interacting with one another, testing our (fallible) responses against each other and jointly wrestling with that fallibility, that we have any reason for believing that we're still following the same rule. Apart, we have nothing to combat the inescapable worry that we're on two separate tracks that ran together for some time before diverging.

This is, of course, transparently speculative--but not implausible. For whatever reason, I find it enormously appealing. And it presents an interesting lens through which to study constitutional rules. In particular, it highlights the sheer precariousness of political and legal rule-following: somehow, we must embed this back-and-forth of collective error-correction within an institutional structure robust enough to withstand the enormous pressures that the interests at stake in alternate rule-interpretations will call forth. Because unlike [most] questions of linguistic or mathematical rules, everyone involved in the practice of constitutionalism cares very deeply (or ought to!) about which rule we're following. Indeed, only the most bloodless of rule-fetishists would deny that it is sometimes more important to grasp onto a different, better rule than to accept the consequences of the existing one. Values, interests, personal and communal histories and identities--all of these will loom far larger in the legal than in the [pure] linguistic case.

The irony here is that, in defusing the skeptical paradox, we've made the everyday practice of constitutionalism seem almost miraculous. But is this a bug, or a feature? How confident can we be--how confident are we--that we in the contemporary United States are, in fact, following the same rules? Are John Yoo and Marty Lederman displaying the dispositions required of public rule-followers? Were Antonin Scalia and Sandra Day O'Connor? To depersonalize things a bit: are the institutions we rely upon to ensure that we're all "tuned in" to the same constitutional frequency--from our educational system and most obviously our law schools, to Congress, the Presidency, the vast administrative apparatus and the courts, and of course our media ecosystem--up to the task?

The question is not whether there are any public rules of constitutional validity; of course there are. The question is rather one of degree: just how rule-governed, how constitutional, our system is--or could possibly be. Less so than we once thought, I suspect.

Goodness!

Now that Scott Lemieux has kindly linked to my inchoate ramblings about coordination games and the law, doubling this blog's cumulative pageviews in the space of an hour, I suppose I'd better put up some new posts. Stay tuned!

Legal philosophers: please don't talk about coordination games any more

UPDATE, July 7th, see below.

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Despite Les Green's best efforts (The Authority of the State, "Law, Coordination, and the Common Good"), this seems to be one of those inapt metaphors that just won't die. Some scattered thoughts on the use and misuse of game-theoretic "coordination games" in analyzing the normativity of laws or legal orders generally.

1. If game theory is to illuminate rather than obscure, practitioners must be clear about the players, strategy and information sets, and payoffs. They must show why this game (as opposed to slightly-modified versions that induce with different equilibria) is appropriate for understanding the real-world phenomenon in question. I almost never see this.

2. If the point of the model is to show why we should expect an exogenously imposed change in payoffs, or elimination/addition of strategies--in other words, explaining exogenous law, or the exogenous creation of an entire legal order--the shift cannot be a deus ex machina. What is the mechanism that leads from the original equilibrium to the imposition of sanctions or what-have-you? Who are the players that impose the sanctions; why and how do they do so?

3. Modeling constitutional choice is easy to do badly. It is rarely appropriate to model strategy sets as consisting of regime types. You can't "play" a regime; one emerges as the institutional embodiment of the intersecting strategies of others. If you're at a constitutional convention, you can vote for a regime type, but determining how votes translate into outcomes and payoffs is very tricky and entails hard counterfactuals. When does a vote of X induce factional violence, as opposed to multiple polities, as opposed to some uneasy status quo ante? If instead you wish to model a "state of nature" situation, there is no good reason to include private violence as within the strategy set but not include the violence of players constituting a state.

4. Once we allow for the full set of strategies--and violence--open to players in a state of nature situation, it is obvious that many equilibria will be awful, much worse than many non-equilibrium outcomes. Some equilibria will look like states, some will not. Some will have normatively desirable properties. Outcomes that describe a voluntarist legal order--no sanctions--are unlikely to be equilibria, which is a basic reason states reach for sanctions. Insofar as this model is supposed to explain the emergence of states, it will emphasize the importance of bargaining power, contingency, and path dependence, rather than justice or welfare.

5. Similarly, looking at ongoing polities as large-N games is unlikely to help legitimate the state. A full accounting of strategies and outcomes is likely to once again highlight contingency, power, and path dependence: the incentives that induce the players to go along with the state are rarely as stark or systemic as "my choice brings about system X." Individual sanctioning, rather than the collapse of the polity, generally does the work. This is old stuff, Hume and earlier.

6. None of this is to deny that citizens often do consider their governments legitimate, nor to deny that these beliefs often track (perceptions of) procedural, systemic properties rather than personal advantage. It is merely to note the ceteris paribus importance of state coercion.

7. The bottom line: if coordination game means something more stringent than "multiple equilibria which are local maxima for almost everyone"--in particular, if it means "multiple equilibria, each of which pareto-dominates non-equilibrium outcomes"--there is no reason to think it applies either to state-of-nature anarchy situations or to ongoing regime resist-or-support situations. But if we weaken it to the former definition, then the fact that a particular outcome is an equilibrium carries no normative weight beyond surmounting the "ought implies can" barrier. It is therefore misleading to use a term that carries such significant connotations of mutual advantage, both in game theory and in ordinary language.

8. And also: insofar as coordination games are taken to mean games where everyone plays "corresponding" or "matching" strategies in the multiple equilibria, it's just not clear how the idea of "correspondence" adds anything meaningful in the context of constitutional order and maintenance. It is a property of the emergent outcome, rather than the strategy of an agent considered alone, that makes a certain series of actions come under the description "following the constitution of polity X" rather than "disobeying Y" or "fighting for Z." Claiming that *only* outcomes like the first are equilibria is false to the reality of order's fragility and the diversity of human interests. Is the civil war in Iraq supposed to represent "matching" strategies among factions? If so, the idea of "coordination" adds nothing to that of equilibrium simpliciter; if not, then it's not generally applicable to questions of order.

Blah!

UPDATE: Just so clarify a bit, I'm not saying game theory can never be useful in legal philosophy; it can. I'm not even saying coordination games are never apt; Gerald Postema's "Coordination and Convention at the Foundations of Law," J. Legal Studies 1982, is perhaps the best example of it done right. My point is rather that there are so many ways of going wrong, so many traps that seem to catch even those who surely know better, that it should be used only as a last resort, and then with fear and trembling.